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Wednesday, 18 September 2013

In challenging the Judgment of the Court of
Appeal 24th May 2013 and submitting the pending case to the Supreme
Courts in June 2013 for permission to appeal here is my argument.

There were no arrears and therefore no set-off
needs to be established as there were no arrears in rent whatsoever.

Evidence; Receipt of payment of rent Oct 2008 to
Jan 2009

Point 19 of court of appeal judgment

The only arrears that had built up were
liability insurance monies owed to us, causing a rift in relations
between landlord and tenant. The eminent Mr Jan Luba QC was the first to
mention the term ‘set off’

Evidence; Email between Mr Jan Luba and Ms Jo
Flores (nee Gavin) stating to correct the advocates statement as there was no
‘set off’ which was an important legal term. It meant we were saying we would
not pay the rent as the amount owed to us from the landlord was ‘set off’
against the rent. We never played that game. We always paid the rent. So the ‘break
in’ was a trespass. End of. No set off! Therefore, ‘set-off’ needs to be struck
out, as administratively incorrect and as never pleaded, before pro-bono help
and is incorrect in facts anyway as proved in receipt of rent payments up to
date.

Lord Justice Ward ordered us the claimants to
have pro-bono assistance.

Evidence; Permission to Appeal Judgment Order.

Yet our 4 pages document read to by Ms Flores to
LJ Ward at the previous May 2012 permission to appeal hearing was so concise,
quoting Vural Ltd v Security Archives, Barrett v Lounova, Hargroves Aronson
& Co v Hartopp also addressing each error of fact in the original trial
with irrefutable evidence and showing evidence of the collaboration between the
landlord and the insurers adequately convinced LJ Ward to say that another oral
hearing would have to take place but this time with ordered pro-bono assistance
to formulate the grounds of appeal. So although all facts were correct LJ Ward
wanted a QC to put it in legal language.

Lord Justice Ward’s final point at the end of
that hearing in May 2012 was and I quote;

“all damage that took place at the claimants
premises came from sources outside of the demised premises, not in the
claimants control and legally speaking there has got to be something in that”

It was a very fair and legal point and did later
prove to be very accurate.

So to return to the point of “set off” in that
then 4 years history of the case in the courts, not a soul had used the word
‘set off’ – in fact the nick name for this case printed on garments merchandise
is logoed as ‘Trespassed’

Evidence; Red Trespassed Hoodie.

The forfeiture was then illegal so no need to
apply for relief from forfeiture, as a landlord who has trespassed you is not
going to give you relief, is he? And further the after the claimants broke back
in having showed proof of payment the landlord again trespassed on the 4th
Nov, so this is not a landlord who is not playing fairly as he had no grounds
whatsoever for the second break in as he knows there is no rent owing and what
possible reason could he then have for breaking the locks and wanting us out.
The second trespass 4th Nov 2008 led to us taking two injuctions,
granted by Judge Wilkie on the same day, for protection of property. The losses
are running from April 2004 the point of damage to the premises with insurance
monies withheld, further to the point of trespass, then to wrongful eviction in
Sept 2010 trial judgment and consequently to this very day.

Evidence; The letter that Oliver Barnett says he
cannot recall in his witness evidence, to CHA on 24th Oct 2008
warning not to illegally forfeit – 5 days before the trespass.

The law, which has to be maintained, is Vural v
Security Archives. This case is about harassment, insurance payments were
delayed by the landlord, to put the tenant out of business, so that the
landlord could evict the tenant. As held. I wrote that law for the skeleton
argument I & II and said it at the oral hearing so I wouldn’t change it to
‘set-off’ and I don’t.

Point 20 of Court of Appeal Judgment

The ‘Grounds’ are clear – they are not simply
about an implied obligation for a ‘repairing covenant’ they are about an
implied covenant to keep the ‘repairing instrument’, the insurance in
place– it’s the and/or point in the grounds that won permission to appeal that
are so very clear so they read in effect like this if precise;

‘To keep in repair at all times: Such parts of
the building as might if defective, lead to occurrence of damage covered by an
insured risk”

Evidence; Email evidence between solicitors
Bircham Dyson Bell and I regarding the transcripts of the Court of Appeal.

Ms Flores 23rd July 2013

I wonder if you could tell me whether you recall
me advocating two things. 1. That absolute liability was catered for as I was
insured for repairs at all times and 2. That I asked for an implied obligation
to 5(22) that the landlord could not (like myself) breach the insurance?

Ms McIntyre 29th July 2013

In response to your questions, I can confirm
that you argued the two points you mention below. The
transcript of the hearing will reflect this.

However, I should point out that these two
points did not necessarily fall within the scope of the grounds for
which permission to appeal was granted on 4 December 2012, particularly
your point about an implied covenant based on clause 5(22) of the
lease.

Ms Flores

Thanks
you for your response and for kindly confirming that these were my two points
argued.

Just to add that the clause 5(22) related to a repairing obligation under a
different construction.

Therefore it falls within the grounds that were accepted for implied
obligations to repair.

Just to add further that the
landlord had a proprietary obligation to lay out insurance for repairing at all
times and my insurance cover means that they can still (or should have done at
the time) enforce this obligation with the insurance.

As long as I did not break the terms
they still have a claim on my behalf.

That makes the ground clear and how it is
written by the eminent QC Mr Jan Luba (below), amounts to the same ‘scope’ from
within the grounds that were given permission to appeal hearing on the 4th
Dec 2012 for me to argue 5(22) as the necessary implied ‘repairing instrument’
covenant;

The judge misdirected himself in law as to the
landlord’s liability for disrepair under the leases held by the tenants in this
case. He ought to have held that the tenants’ obligations to repair in respect
of the demised premises, were matched by a correlative implied obligation on
the landlord to keep in repair, “at all times: (1) the
parts of the building retained in its ownership and control, defects in which
may affect the demised premises; and/or such parts of the building as might, if
defective, lead to the occurrence of damage covered by an insured risk.”

Further it must be stated to make more logic of
the situation that we don’t repair either, our repairs are covered too by the
same ‘all risks’ insurance policy as the ‘repairing instrument’. So it makes
the point so clear there is no matched repairing obligation, only a matched obligation
to make insurance claims for repairs, as that is the system and the remedy.

The (above) ground’s, were accepted by Lord
Justice Ward and I am sure his honour understood them as they were written and
pleaded.

If the clause 7(2) of the lease is insurance and
insurance is the instrument of repair then the implied insurance obligation is
clause 5(22), to be the repairing instrument in place, amounting to a repairing
covenant, under a different construction – but the same thing in reality.

Point 21 Court of Appeal Judgment

Going back to the Lord Justice Ward giving us
the Claimants legal assistance, this brings in Article 6 of the Human Rights
Act, if that assistance missed out a major primary fact and at the time of the
legally assisted oral hearing, no advice had been given to the claimants, one
could say the claimant could only be forced to trust that all grounds from
their previous skeleton I & II were catered for.

Since Ms Flores is not the type to simply trust
the advisors she stood and covered that base or loophole as she saw it at the
time by asking Lord Justice Ward to accept that there may well be grounds not
covered in the advice (when she got it) and that she would be at liberty to add
any that had been missed out.

In the original trial HHJ Cowell said that the
claimants had not complained of the want of the structure to be repaired.

Evidence N244 submitted to the Court of Appeal
before the hearing on the 2nd May 2013 attaching all documents with
irrefutable evidence proving the claimants had repeatedly asked for structure
to be repaired.

So Ms Flores asked that this be added into the
grounds of appeal and she produced all the evidence so that even a fool could
see she was absolutely correct in evidence and to appeal it, as one of the grounds.
Transcripts cannot be necessitated when evidence produced stares one in the
face. The Court of Appeal simply dismissed a large part of the claim amounting
to 10’s if not 100’s of thousands of pounds by not accepting this as a ground
that Mr Jan Luba QC had inadvertently left out. This does not take into proper
consideration Ms Flores suspected lack of trust and unfairly dismisses, off
hand, with no good reason, a ‘primary fact’ with irrefutable
evidence.

The structure was illegal. It breached building
regulations. In the famed Southwark V Mills case, the local authority were
reprimanded (although they won the case) and lessons were meant to have been
learned for a public landlord from this case so that as of the year 2000, no
building regulation in a development or new build (as was in our case with 17m
public funds given over in 1999 for rebuild) was allowed to be breached.

In this case only 1 year later the CHA public
landlord have famously and flagrantly have breached the law and are going to great
lengths to cover this spending in legal costs more than the claim itself was
originally.

This ground, then cannot be simply thrown to the
side just because the Court of Appeal feels like it with no justification. This
ground must morally, socially and legally be put back into the claim. If not
this is not a fair trial.

So that deals with the structure and breach of
building regulations, the largest part of the claim so now since we are dealing
with the issues let’s just quickly deal with point 18 of the Court of Appeal
judgment while it is still nearby at the head of the judgment.

Point 18 of the Court of Appeal Judgment

I think it is important to address, “set off”
first, then clearing the matters of the grounds of appeal, then the
misdemeanors of what constitutes a fair trial and how large parts of a claim
cannot be simply removed in a very manipulative manner and then forgotten about
which lead us adequately into that important building regulations issue the
structure of the building and it’s illegality, so as I said just to deal with
point 18 whilst it’s still nearby, that is also a building problem which forms
part of our claim.

It is an issue of leaks (covered by insurance)
coming into the property via an inadequate bitumen sealant on the street
pavement that requires bi-annual maintenance to prevent water ingresses
occurring every two years.

Now HHJ Cowell, the Judge at the original trial,
held that the pavement did belong (as proved by us) to the defendant
landlord, as they insisted throughout it did not. We the claimants can’t then
in law be expected to ‘relieve the landlord’ of his legal ‘duty’ to get
it fixed as HHJ Cowell suggested we might.

Firstly we did not have the means to do so and
even if we did and had mitigated the losses ourselves, we were actually
forbidden to do so, as it was a public pavement as well as the landlord in this
case expressly forbade us to contact their contractors Kingsbury Construction
(when we called them, as seen in evidence). But most importantly our contractual
obligations were not to cover repairs outside of the demised premises.

The 7 months delay in fixing the first pavement
leak cannot be justified as there was nothing to trace before remedy. Now if in
this Judgment of the Court of Appeal, you are referring to another 3 years leak
into the high voltage electricity cupboard then further as in the law of
Woodfall;

Evidence; Woodfall

‘Bad Contractors’ is in no way a legal defence
for the 3 year leak.

So to conclude that deals with;

-the
structure which was illegal

-the
pavement which leaked every two years

-and
now the pipes leaking into the electrical room for 3 years.

So I’ll move on now to the next point and that
is point 23 of the Court of Appeal Judgment.

Point 23 of the Court of Appeal Judgment

This point deals with ‘notice’ to the landlord
of disrepair and in turn adds to the fact that this was ignored in judgment by
the Court of Appeal breaking Article 6 of the Human Rights Act, the right to a
fair trial. Like the issue of the structure being manipulatively set aside the
‘notice’ to the landlord part of this case has simply been ignored by the Court
of Appeal.

One cannot simply make judgment accepting up to
3 years delay in repairs. In the law of Hargrove, a ground accepted by the
permission to appeal hearing, damages were awarded after 2 days ‘NOTICE’
but in our case, even the insurers said, that after NOTICE the landlord
committed ‘an act of omission’ by failing to repair on time.

So if we take Hargrove as a benchmark on
‘notice’ and in that case liability was established when the claimants having
given just 2 days ‘notice’ before any damage was caused won the case, then in
our case, if we apply the same principle to 16 cases of disrepair over 4 years,
(many at the same time in different place, so subsumed as in can’t be claimed
for twice in the same period even though they were different incidences but
nevertheless), then after ‘notice’ repairs should be completed relatively
quickly in law.

However and we have evidenced this throughout so
it is not in dispute either and we still contend that repairs took, 4 months, 7
months, 24 months, 3 years, 3.2 years, another 3.2 years + others and some
never got fixed at all, so that the benchmark and president in law for
Hargroves Aronson v Hartopp is by far exceeded.

Why then has this been ignored in Judgment by
the court of appeal.

Notice is a major part of the law!!!

And upon giving ‘notice’ a landlord then is
legally required by ‘duty’ in common law.

But as I said and I keep saying, it matters not
in ‘duty’, ‘common law’ or even ‘notice’ as I was insured, so landlords and
tenants has no place in this case.

Ironically the UKU building insurance has no
cover for any ‘landlords and tenants’ dispute as they simply deal with our
contract of insurance with the landlord and ourselves through the landlord, so
they don’t pay legal costs for a trespass case, yet they are paying CHA’s legal
costs alongside the additional RSA public liability insurers, mixing it up to
defend the insurance claim (as a commercial decision ‘yes’ apparently they are
allowed make according to the financial ombudsman, that is if FOS is anything
to go by but there it is). At this stage they should check the legal merit and
the win, which has to be more than 50%, then they should pay us and recover
with all their might from the landlord who is well able to defend himself as
this case is a legally unfounded case and they can only hope to win by tactics
either to wear us out and keep us in court as long as possible, hoping we may
slip up or die or starve or whatever game plan they have with all their mighty
resources between them all. The landlord seems to have played that card maybe
the insurers have too. Well everything has a funny way of being exposed in this
case!

But it is in their interest to keep us on our
knees, to help the landlord strip us of our shops, our money or of any way we
can further a ligitimate insurance claim. Us disappearing would save them a
claim. So there must be some way a court can observe that and address it, at least
by commenting on it.

Or every leaseholder in the country
should worry that a standard policy of joint landlords and tenants insurance
means nothing, as the bigger party will be unfairly armed and that is a
commercially viable option available to insurers, especially to a large account
holder such as a public landlord with widespread connections as is just most
recently legally recognised as having such widespread connections by Europe.

The insurers dropped this landlord so as not to
pay them to pay us yet is legally defending them still now at the Supreme Court
stage.

The insurers said the landlord failed to repair
on time after NOTICE.

They know the law but here is some more of the
law for those to be convinced still…

In Cockburn v Smith (where Hart v Rogers which
is no longer an authority was a supplemental case that the landlord who
retained a roof was under an absolute duty to repair, stressing the word
‘absolute’ duty), it was held that the landlord was under an obligation to take
reasonable care once he had ‘notice’ BUT in that case the landlord had
some expressed obligations to repair the common parts.

In our case the landlord had no express
obligations to repair (EXCEPT To: Keep the demised, my shops, and the common
parts above the shops and enveloping them, called “the development” insured
against all risks) and that was never argued in the Court of Appeal so it
cannot now be said in Judgment that it was said. I never said they have a
‘duty’ to repair-never-not once-because I know they don’t!

NOTICE, however was argued
(as in common law notice) and the ‘duty’ to take ‘reasonable care’ but the most
important thing which is about notice really (as it certainly
played a large part in the insurers decision that the landlord had created an
act of omission BY failing to repair on time after notice) but the most
important thing, I contended at the Court of Appeal, which brings us straight
back to the law of Hargrove is that in Clause 5(22) of the leases there was an
implied obligation for the landlord not to break the terms of the insurance –
so that – in the landlords expressed obligation, monies could be laid out, once
damage was done from the premises, retained by the landlord and outside of my
premises and control.

All parties were simply insured against the
occurrences that took place. The insurers have said the landlords wrong in
notice and so MUST the courts.

I don’t care if the insurers pay and then
recover the costs from the landlord, they are huge businesses and by the time,
if this case is anything to go by, in terms of them sorting it out among
themselves and in terms of the cost of doing that happens then I’ll be long
gone – it is simply NOT MY PROBLEM!!! In terms of them stacking up £500,000
worth of legal costs against me, when my claim could have been settled for much
less – are they simply nuts the pair of them – or as suspected this case is
certainly bigger than me and if that is the case… well it is of public interest
as, in future, my law will effect every leaseholder in this country- and they
should be worried.

And if you find it is the case, then I better
get loads of damages because I’ve just saved loads of tenants and leaseholders
throughout the country and nearly half killed myself doing it, doing 1000’s of
hours of work, nearly losing my eyesight, not being able to have children,
losing my businesses, living on nothing, losing my relationship, nearly
financially ruined for life facing half a million pounds costs and never being
able to recover who I was as an independent professional and the time lost!!

No- the damages are substantial! And there has
to be something said for a professional lawyer who under an oath to the law did
not drop this case out of ethics – when she knew – I AM RIGHT!!!

Point 24 Court of Appeal judgment

So onto point 24 of the judgment of the Court of
Appeal – Again here to

deal with notice based law – Sedleigh Denfield v
O’Callaghan again this was a case where a blocked drain caused trespass in foul
sewage to the claimant. It was held that the defendant failed to make
the drain safe and adopted the nuisance over a three year period, so despite
notice, damage was eventually caused and held as such.

In our case it is important to look at the
notice periods given, did the landlord continue a nuisance by not only failing
to repair but by also failing to make insurance claims in a timely manner?

An ‘act of omission’ doesn’t exist if they
informed the insurers and made claims –

I mean does the Court agree that the landlord
had a ‘duty’ as in Sedleigh Denfield v O’Callaghan, upon notice to make
insurance claims, to repair? Insurance being a repairing instrument and
obligation the same thing under a different construction?

Point 25. Court of Appeal Judgment.

In the Court of Appeal they said in Judgment
that it was not argued by me that it was a Rylands v Fletcher case and it did
not form part of the grounds of appeal. Yet ground 1 of the amended grounds of
appeal is that: the Judge ought to have directed himself that the landlord was
liable to the tenant for all loss (and forgive me for being thick here
but all loss is Rylands v Fletcher) caused by the defendant and not
simply for loss as suffered after the landlord has had knowledge of it etc and
further in paragraph 46 of our skeleton argument for the Court of Appeal it
says; -

“The judges error was to hold that the landlords
only duty was to repair the defect in the retained premises ‘as soon as
reasonably practicable after he knows it is causing damage to the demised
premises’ (and I quote the words of the eminent Mr Jan Luba QC): “with respect
that cannot be law”. It is not impossible to imagine cases and this case may be
a paradigm, in which a series of defect, each in turn repaired reasonably
promptly by the landlord, successively causes such damage to the demised
premises that they are rendered worthless and the landlord escapes liability…”

And before I continue – I have made copious
references to Rylands v Fletcher as a ground (because as we all know the only
two out of twelve grounds that failed to get permission to appeal were the
forfeiture and the stay at the premises) in my case and I remind those of us
that were there at the Oral hearing for permission to appeal Lord Justice Ward
was quite tickled that Mr Jan Luba QC (who gave some pro-bono help at that
hearing) was going to try to reinstate the law of Rylands v Fletcher as an
authority-

So I will explain- Rylands v Fletcher having
learned it like the back of my hand; the Rylands v Fletcher case is about
‘absolute’ liability-

Rylands mine was flooded by Fletcher, when Fletcher
was building a reservoir and for reasons best known to his builders they failed
to block up some old mine shafts, before filling his reservoir with water. Of
course the water then weaved it’s way to the working mine of Fletcher rendering
his business flooded and worthless hence the law:-

‘When someone keeps an artificial construction
on his land and it causes mischief on another’s property, he must keep that
thing that may escape and cause damage, at his own peril”.

This was the birth of ‘absolute’ liability and
in some respects if not the actual very case – it’s precious re-instatement
would cost insurers like it used to until just recently, as was fair and right.
Liability in insurance terms anyway is from the point of damage or why else
have insurance?

So back to me without any doubt that I mentioned
the Rylands v Fletcher case (because I was covered by in my view by ‘absolute’
liability because I was insured for liability contractually with my landlord)

So I continue- in the grounds accepted in the
permission to appeal hearing in paragraph 48 of our skeleton argument it said:

“The Judge ought to have used the ‘duty’ he
identified in Duke of Westminster v Guild as a basis for holding that the
liability of such a landlord arises as soon as the defect in the part retained
by him causes damage to the demised premise:- this is summarised in the law of
Woodfall, “where a lessor (landlord) retains in his possession and control
something ancilliary to the premises demised, such as a roof or staircase, the
maintenance of which in proper repair is necessary for the protection of the
demised premises or safe enjoyment of them by the tenant, the lessor is under
an obligation to take ‘reasonable care’ that the premises retained in his
occupation are not in such a condition as to cause damage to th tenant or to
the premises demised”

Kind of a long-winded version of Rylands v
Fletcher – you know NOT to cause damage – reasonable care etc

Okay so…

In Hargrove, Aronson & Co v Hartopp a gutter
gets blocked up, landlord fails to clear out after a few day’s – held to be in
breach of ‘duty of care’. Cockburn v Smith – very similar held liable –
guttering of roof landlord retained control of roof. Lord Justice Scrutton in
the case considered that the landlords duty was based on that modified doctrine
of Rylands v Fletcher (again actually mentioned in the grounds and skeleton
again)

Artificial construction

Becomes a source of danger

To the tenant

Then Lord Justices Bankes & Sargant, preferred
not to say whether the relevant ‘duty’ arose out of ‘contract’ or whether
it was a ‘duty’ imposed by ‘law’ upon an occupier of premises to take
‘reasonable care’ that the condition of his premises does not cause damage-

“BUT they
expressed NO DOUBTthat
the relevant ‘duty’ existed”

and I think it is important to point out that
yet at the Court of Appeal three Judges quashed not only what Bankes &
Sargant LLJ’shad said but
overturned a judgment by HHJ Cowell the original trial judge that the landlord
had a ‘duty’ to repair on time as one outweighed the other so the court of
appeal now seems to think.

So where Bankes & Sargant LLJ’s were
specific that the relevant ‘duty’ existed, preferring not to say whether that
was in common law or in contract, the court of appeal has now preferred
contract saying none of the landlords and tenant act matters as the contract
overshadows all duties in common law-

So contract here in this case has won the day
and new law has been made

So this case isn’t worth arguing in landlords
and tenants anymore, those laws are worthless and my case is thereby concluded
with this evidence

Insurance Evidence: The landlord made me
un-insured and broke his obligation in contract to insure

All Documents proving the dispute with the insurers
between the landlord and themselves already shown at the court of appeal, the
oral hearing and the original trial.

But since I don’t think one can set aside common
law since Bankes & Sargant highly regarded Judges and used all the time in
court cases expressed that they had no doubt the relevant duty existed- I shall
continue on my absolute liability Rylands v Fletcher point- In paragraph 49 of
our skeleton argument for the court of appeal and the grounds of appeal
accepted at the permission to appeal hearing, it states;

“That the Judge seems to have imported
requirements that, before any liability can arise there must be:

(1)Knowledge
or notice of a need for repair on the point of the landlord; and

(2)a
reasonable opportunity for repairs to be carried out.

That puts the tenants of an ‘enveloped’ premises
in a seriously vulnerable position. The correct approach would be that the
landlord is (and again here we have it Rylands v Fletcher echo’s) absolutely
liable, if a defect in the non-demised premises caused damage to the
premises demised.

As Lord Justice Carnwath said in the Earle v
Charalambous case;

“In applying a standard (landlords) lessors
repairing covenant, the law draws a distinction between disrepair
in the demised premises themselves and disrepair in other parts of the building
within the lessors control”.

Paragraph 54 of the claimants skeleton argument
for the Court of Appeal.

Lord Justice Carnwath continued:

“In the latter case the ‘general rule’ applies:
that is, the ‘covenant’, requires the (landlord) lessor, to ‘keep the
premises, in repair at all times’ and he is in breach immediately a defect
occurs. (British Telecommunication v Sun Life Plc).

Although it can be said the landlord has no
expressed covenant in the leases to repair, they do have an expressed
in the leases to insure- against ‘all risks’ that could cause damage to
the demise, which can be said to be the same thing under a different
construction-

Earle v Charalambous and BT v Sun Life being the
famous authorities and cases won that deciphered the meaning in construction,
“to keep in repair at all times” within a contract, actually means “at all
times” – the minute you damage- you pay!

“General Rule” is established (in common law and
in contract) and so liability insurers, who get a claim of damage that came
from outside the premises demised, would accept absolute liability immediately
as that is what the cover is for. Damage covered “at all times”.

If this case is said not to be anything to do
with common law as there was a ‘contract’ of insurance, then luckily we
were covered for “all risks”, “all damage”, “at all times”-

Further: In the lease contract the landlord
retained rights to enter our premises and repair and the original Judge said
that the law of nuisance was “sufficiently pleaded in terms of fact”.

So all these points I’ve made do suggest that at
the Court of Apppeal, ‘Rylands v Fletcher’ formed part of the grounds
and I will not give way to cheap tactics, technicalities or errors that suggest
that I did not suggest Rylands v Fletcher ie ‘absolute liability’ from
the point of damage. To say it wasn’t in the grounds is breaching
Article 6 of the Human Rights Act, the right to a fair trial, when it was!

And further for the Judges in the Court of
Appeal on May 24th 13’ to suggest no stricter liability in common
law (-when NONE was pleaded anyway-) for an implied obligation to repair, then
what already was contracted
in the lease and has remedy –
oh dear is beyond belief-

because they don’t say yes insurance was in
place but then the landlord scuppered the remedy-

they don’t say ummm but the landlord breached
the “expressed” need to insure in
the lease contract, they don’t mention, the medicine was gone- the remedy-
didn’t exist-

but prefer to say the law should “not be
stricter than the” non-existent “remedy”.. it beggars belief and IS NOT FAIR,
RIGHT OR LAWFUL!

The judgment then gets rather long-winded off on
a tangent about implied obligations and the explains suddenly why a ground that
was excepted to be used at the Permission to Appeal hearing NOW cannot
be used and that was the law of Barrett v Lounova..

Because you see in that case, it say’s that if I
fix the inside and no one is contracted in the lease to repair the outside well
the ‘implied obligation’ common sense ‘obligation’ would be as judged in that
case that the landlord who has control of the outside exterior must by ‘implied
obligation’ fix it or else my fixing the inside just becomes a futile
exercise when his outside is continuously causing me damage-

But we used Barrett v Lounova not for want of
the landlord to repair the outside himself, we used Barrett v Lounova for the PRINCIPLE and the precedent of
the need for an ‘implied obligation’ and this case adequately helps draw a
parallel in our own case-

If we repair the inside and the landlord doesn’t
get his act together to make insurance claims for the outside to be repaired, a
contractual expressed obligation as in the insurance which are the
‘special facts’ of our case-

Like the same as a repairing obligation, Barrett
v Lounova, assists to make a fair judgment.

It’s the same, same, but different.. Everyone
in legal advice since the beginning say’s it’s a Barrett v Lounova case and it
is-

BarrettLounova is the same except one is a chopstick and the other is a fork,
same, same but different.

In the Court of Appeal the Judges suggested we
asked for a fork but we asked for chopstick it’s the same instrument, it does
the same job.

The Judges can’t say oh we can’t have Barrett v
Lounova because ‘insurance was in place as the remedy’ when the chopstick was
broken.

Barrett v Lounova is the principle in
law, it cannot be an identical case, ‘no
case can be identical’, they all have ‘special facts’ so for the Judges to actually say we asked
for something we didn’t and didn’t want, is a lie, blatant, it just did not happen!!! Again Article 6 Human
Rights Act, Right to a fair trial. It’s just twisting facts and pleadings, to
suit dismissal of the case and making some far-fetched analysis that there is a lack of comparable law in the Barrett case, where clearly there is.

No- implied obligation to repair was NOT
requested-

An implied obligation to keep insurance in place
clause 5(22) of the lease was requested to be implied-

In simple language for the landlord not to break
the insurance as we under 5(22) cannot

-VICE/VERSA-

-SAME,
SAME BUT DIFFERENT-

-TWO
REASONABLE MEN WOULD IMPLY WITHOUT HESITATION-

The Court of Appeal in Judgment says that at the
original trial the laws that were relied upon by HHJ Cowell at the original
trial were Gordon v Selico LTD – BUT – this was a case of fraud committed by a
third party-

Nothing to do with the landlord and tenant, it
was a 3rd party builder, they should have sued the builder directly-

Duke of Westminster v Guild was cited –BUT- in
that case the nuisance came from the claimants own premises and actually caused a trespass in foul
waste to the landlords land.

Bankes & Sargant LLJ’s in the case of
Cockburn v Smith was cited and explains a want of ‘reasonable care’ after
notice, where he is given notice and fails to repair.

The Court of Appeal Judgment say’s HHJ Cowell at
the original hearing cited further authorities such as Carstairs v Taylor – BUT
– this was a case where an animal caused the said leak and this was deemed in
Judgment to be an ‘Act of God’ not the fault of the landlord.

HHJ Cowell had mentioned Hargroves v Hartopp but
that was actually a case where it was judged that it was too late for the
landlord to say that the defendant should have insured against damage and the
landlord was liable.

The Court of Appeal continued but now from their
own point of view in Judgment quoting Lord Justice Scrutton and his concerns
over whether the issues arise in tort or in contract (tort being individual
cases of damage) and the Court of Appeal in Judgment wonders about the legal
implication left open?

But they conclude that Lord Justice Scrutton in
a previous case, thinks the legal implication is tort and a ‘duty’ to take
‘reasonable care’ not to cause nuisance.

As for the legal implication left open as to
‘tort’ or ‘contract’ the Court of Appeal mentions another case that merits a
possible answer to that legal implication, Gordon v Selico and say’s that L.
Goulding expressed the view of whether ther was a gap in the instrument (ie the
lease) and said it was more natural to fill the gap by implication ie ‘AN
IMPLIED OBLIGATION’ than by the laws of tort (as I said individual cases of
damage)-

So here they quote another law which is actually
a very well known leading authority Liverpool v Irwin – In that case where an
‘implied covenant’ was preferred over matters of individual tort. This case is
now used in effect to make the system now workable for good rather than
spending huge amounts of time and money on individual tort cases. So using, a ‘implied
obligation’ in the absence of a complete contract is a more effective
longstanding decision in law. The facts that made this case, a precedent, were
in torts in cisterns overflowing and vandalism on a large dwellings estate. It
was a case, due to it being a public landlord of large dwellings where the
housing act 1961, Section 32 came into play and although there were no
expressed obligations on the landlord to repair, the Court decided in
their absence and to make sense of the contract/instrument to keep the ‘common
parts in repair and easements in working order’ to complete the contract by implying
obligation on the landlord as the contract necessitated it!

Point 26. Court of Appeal Judgment.

Here we jump from domestic water supply or
lavatories (not mentioning they would have to be an easement ie for our use
too) saying and I quote, “it is well
established that tenants cannot sue under Rylands v Fletcher for damage caused
by defective guttering or leaks in water pipes in the

Evidence: Pictures of nine foot of shit coming
down the walls.

absence of proving negligence” and I quote
again, “the same PRINCIPLEMUST
apply to SOIL PIPESin this
case” –

How’s that then as each is quite hugely
different, one carries domesticwater and the other domestic waste ie toilet sewage! SO HERE WE ARE QUICK TO USE PRINCIPLE IN LAW!! –although the comparison from a fork to a
chopstick is quite clear, I cannot compare water with excrement easily or at
all.

And that concludes my Rylands v Fletcher point
clearly in the grounds in response to the Court of Appeal Judgment point 25 and
a bit of 26 and 29 in Carstairs v Taylor also Lord Buckman preferred not to say
the ‘duty’ arose out of ‘common law’ or ‘contract’ too-

Point 32.Court of Appeal Judgment.

So I move to point 32 in the Court of Appeal
Judgment made on the 24th May 2013 currently in application for
permission to appeal at the Supreme Court.

On this point the court of Appeal decided that
due to, Gordon Teixeira v Selico LTD, which we the claimants apparently and
according to the Court of Appeal anyway, follow this line of authority,
therefore we cannot plead, they say, an ‘implied repairing obligation’- In
Gordon v Selico which I might just add in here was only produced on the first
day of the trial as an authority- so we had a night to learn it – it say’s;

“that the implied obligation to repair should be absolute in
nature in the sense that the landlord became liable for the consequences of
disrepair as soon as it occurred, regardless of whether he had or should have
had notice of the defect”

BUT as I quickly point out, the case pleaded is
for a repairing obligation and also the special facts in this case are it was a
fraud case committed by a third party, namely the landlords builders.

In our case the third party is the insurers but
in our lease contract it caters for the landlords third parties and they are
named as it’s servants and agents. The insurers, unlike the builders in this
case are at loggerheads with the landlord but the landlords only duty in
contract is to us to insurers the premises at an insurer of good repute. The
landlords 3rd party is nothing to do with us, we don’t choose who
they are. If this was a game of poker and the landlord owed us money it would
not matter how he got that money or his fight with a 3rd party
though he was a fool to lose money in a poker game so would not pay then it
cannot be, that the landlord does not fulfil his “expressed” debt.

The contract is fair. I might add that it is his
ONLY expressed contractual obligation to insure us in theses leases. And we
paid him to do so. He cannot get off the hook by teaming up with his 3rd
party to beat us up. We have done nothing wrong and are owed a debt that is
rising by the day.

We have no contract with his 3rd
party except limited contact through the landlord in producing essential
evidence to show the losses.

I cannot see that Gordon v Selico is an
authority we would need, as the third party is not our concern,

We contend and have throughout that the landlord
was ‘absolutely liable’ because insurances were in place for Property Owners
Liability P.O.L. for short and we showed the policy in the Court of Appeal and
its not ever been disputed never mind mentioned by the other sides solicitors
and lawyers, that the policy covered us all for damage, including business
interruption because of any insured risks OUTSIDE of the demise
affecting the demised premises.

The only implied covenant requested was them not
to vitiate the insurance like we can’t in 5(22).

I cannot believe the case pleaded has been
turned into something not pleaded or even said.

But if we are to follow Gordon v Selico common
law aspect of the case which so much time was focused on and apply it in
PRINCIPLE to what we did ask for 5(22) the landlord not to void the repairing
instrument of insurance then in Gordon v Selico it say’s “ The courts of appeal
decided in those cases that any liability derived from the position of the
landlord as an adjoining occupier is based on negligence and notice!

Well one, the insurers won’t pay because of the
landlords negligence and two, it flows that they won’t pay as the landlord took
too long to repair after notice- so that according to Gordon v Selico it is an
authority in our favour for an ‘implied covenant’ for the instrument of
insurance, that serves to repair to be kept in place, as expressed in the
contract.

At the Court of Appeal the lawyer for the
landlord said an implied obligation for the insurance not to be voided may have
been deliberately left out by the architect of the leases however that is not a
good argument and has no place legally in the case and further is only a
secondary point to the ‘expressed’ obligation to insure in the lease and no
insurance was in place because the landlord voided it.

So to conclude the landlord in breaking the terms
of the insurance has left us paying the rent, bills and business rates whilst
being unable to trade. The landlord in fact made no application for ‘cessor of
rent’ a cover in the insurance policy whether in part or in full when we were
wholly unable to trade and he still continued to demand rent.

This unduly enriched the landlord whilst they and
we were covered elsewhere in contract by insurances.

All the Judges to date have accepted that the
landlord breached the insurance except the Court of Appeal who have just failed
completely to state it at all.

Therefore an implied covenant is still required
as is right to keep the contract from being ‘absurd’ without it. ‘ABSURD’ is a
legal term, for an ‘UNWORKABLE’ lease contract, it is then not worth the paper
it is written on.

“If it is absurd in our case, it will become a
stupid case that every leaseholder in the country should worry about. Landlords
effectively doing nothing to repair with insurance, not making claims and
getting way with it”

Or landlords going around their leaseholders
houses/flats/shops/businesses and saying;

“well I had a look and that was (very legal term
here) ‘reasonable’ of me and that then gave me as much time as I needed to get
the job done after I called into you” - “I have complied with my part of the
law after (another legal term) ‘notice’ therefore, since I looked the next day
or soon after - you have to give me however long I want to repair. Oh and I
might just do a DIY job myself and not bother the insurance company, saving
myself a claim.”

So does anyone in this Supreme Court or in the
country want to be a victim of that mentality, I don’t think so – You MUST
convict this landlord of negligence after notice and making claims so
late (and then only when the ceiling flooded and had to be replaced so they
could not avoid making a claim but before they did we had to pay £3,000 to
replace it ourselves) so as to void the policy and finally for
triggering the legal defence in the policy to avoid the claim for 5 years.

Further when material damage was caused by the
landlords demised premises and we paid for the damage ourselves for example
£3,000 ceiling, we were reimbursed ‘directly’ only because the landlord did not
repair themselves, as they should have mitigating losses according to the
contract.

Point 33. Court of Appeal Judgment.

The Court of Appeal in Judgment stated ‘by
contrast’ an authority, the one and only ‘authority’ O’Brien v Robinson, which
is the exception to the general rule. The ‘special facts’ of this one ‘exceptional’
case to the ‘general’ rule, has often been criticized. Lord Justice Norse
explains that there can be exceptions to the rule like when an
occurrence of damage is wholly outside of the landlord’s control.

And we see this in the case of O’Brien v Robinson,
where the ‘special facts’, in this ONE case made an ‘exceptional rule’,
to the ‘general rule’, ‘that before a breach of duty can arise notice must be
given’.

BUT since that ruling has often been criticized
as being the exception rather than the general rule, it is odd that it makes this appearance
in the COURT OF APPEAL PLUS IT BEARS ABSOLUTELY NO RELATION TO THE SPECIAL
FACTS IN OUR CASE. In O’Brien v Robinson a hairline crack on the ceiling of a
tenants bedroom was not visible to the tenant but they did give the famous
notice as they complained that the ceiling ‘might’ fall down with all the
dancing that was going on upstairs for years. They then won the case as that
was regarded as notice. The landlord had had a ‘reasonable’ opportunity to
investigate.

It was an odd case as notice was based still on
the crack being invisible even to the landlord.

This was never our case, our case is very
straight forward and all damage was visible. Notice was given, yet repairs were
not carried out within a reasonable time or in terms of the structure, at all
until after we were illegally evicted. The evidence of all of the repairs are
in the joint surveyors reports

Mike Parrett damp surveyors report as the joint
witness surveyor.

The structure did not comply with building
regulations.

Therefore the general rule must apply to our
case, as it is not an exception to the rule and the occurrences of damage were
not invisible.

The general rule must be in construction with
regard to insured risks. This is then absolute liability as covered by
insurance from the day of damage, especially since the damage came from outside
our premises. Notice cannot be therefore given to defects outside of our
premises. We would have to have x-ray vision or be psychic to give notice of an event in the neighbours flat.

In our case we simply tell our landlord damage
has occurred, he makes an insurance claim to compensate us for any damage and
any consequential losses. This is normal and is ‘absolute liability’ when the
insurance is in place covering all risks including flooding and leaks.

Point 34 & 35 in the Court of Appeal
Judgment.

The Court of Appeal debated in Judgment
if, as in the case of British Telecom v Sun Life, which was the case about
construction of words and what to ‘keep in repair’ “AT ALL TIMES” meant and “at
all times” meant exactly that, “liability from the day of damage”, “absolute
liability” or simply ‘in repair, at all times”, - but the Appeal Court in our
case, concluded that- as stated before and wrongly I might add that the
original Judge had decided in our case that he would import requirements to
give ‘notice’ and allow them a ‘reasonable’ opportunity to fix the damage. The
Court of Appeal pretty much dismisses BT v Sun Life PLC, to ‘keep in repair, at
all times’ as this could give rise to the need to have the landlord repair
immediately, which may in turn allow the Court of Appeal to imply a repairing
covenant and again sorry something we didn't ask for- anyway so the
whole exercise is very invalid but the conclusion by the Court of Appeal is
that “no stricter liability can be given before notice and a reasonable
opportunity to repair” backing the first Judge who wrongly in law imported
these requirements.

But if we are to ignore all that and apply BT v
Sun Life plc to what we did ask for which is to honour the landlords expressed
(in contract and leases) obligations to keep insurances in place, then we would
be covered for damage ‘at all times’ and not only is that an expressed covenant
in the leases as a landlords ‘expressed duty’ but if we were to get what we
asked for which the law allows that would be the implied covenant to not breach
clause 5(22) which would be not to vitiate the insurance cover, as we can’t so
it must be implied that they can’t either. And using BT v Sun Life plc that
compensation is due at the point of damage, as the landlord is to keep
insurance covering “all risks”, “at all times” and that is “expressed” in our
lease contract, with an insurance policy inextricably forming part of the lease
contract, attached to the leases.

Point 36. Court of Appeal Judgment.

The Court of Appeal draws our attention to
Liverpool v Irwin and quotes Lord Wilberforce saying about the necessity to
have an implied clause as opposed to what an occupier, can do for themselves.

In that case the contract needed an ‘implied
obligation’ as the contract was incomplete as to who was responsible for the
common parts, lifts, stairs, chutes being in good working order etc and the
contract was incomplete. I think this case shows a necessity for an implied
clause in our case and should work in our favour.

Point 37. Court of Appeal Judgment.

Further the Court of Appeal quotes Lord
Edmund-Davies who pondered on the question of whether it is an absolute duty to
repair, the common part or whether it is qualified by special facts as to
amount to a breach in the landlords obligations.

Lord Edmund-Davies looked at Hart v Rogers (no
longer an authority) where the landlord did not repair the roof that had leaked
into the claimant’s premises and since that was outside of the claimant’s
control, it was seen as an absolute liability case.

Lord Justice Scrutton in the Hart v Rogers case
looked at another case of Miller v Hancock when deciding the outcome. It was
held in that case, where a claimant’s visitor fell down the stairs because they
were worn and defective, that there was a ‘duty’ to keep the stairs and common
parts in repair.

However later cases Dunster v Hollis, Cockburn v
Smith, decided that there was only a ‘duty’ to take ‘reasonable care’.

In our case there was no ‘easements’ meaning
common use or common parts as we are commercial leaseholders and nothing to do
with resident ‘tenants’, so these laws which are actually statues, under
something called Section 11 and are carefully drawn up in statue for similar
cases of dwellings of multiple occupation, but as commercial leaseholders and
nothing to do with residents, Section 11 does not apply to our case at all.

We just happened to have leased from a landlord
underneath a multiple occupation development, where section 11 special facts
and enjoyments are applicable to the residents in their tenancy agreements.

But it has to be said that most shops in every
high street are generally underneath (enveloped) a residential occupation.

The large public landlord should be warned that
laws and privilege’s that apply to residents are certainly not the same with
commercial leaseholders, who can ill afford to casually wait for a reasonable
time in ‘duty’ for a landlord to repair as they somewhat completely differently
are losing actual cash by the day and the consequences are that without cash
flow the commercial leaseholder can be put out of business and owe creditors,
in bills, business rates and any other duties they may have to their clients.
The consequences of a lack of repair ‘at all times’ are clearly distinct from
that of a resident who may face ill health or discomfort.

This is the laws of Chancery (a Court of equity) and the maxims of
equity (Equity will not suffer a wrong without a remedy).

A landlord when dealing with a commercial tenant
must insure and claim compensation for all the losses ‘at all times’ – (one
just has visions of a concert hall or national newspaper going out o business
for a day. The losses could be catastrophic by the day) and that is business
for you! Insurance has to stay in place! The massive public landlord with
connections in the judiciary cannot get off scot-free just because they have
power and influence or we should all be worried!!

Email evidence obtained and given to the Supreme
Court in this pending application that the highest judges in the land were
involved in this small business case showing a want to bury the case and also a
completely illegal family conflict of interest.

That is a nightmare scenario!!!!!!!

I had people to let down and compensate too.

This is of National public importance.

Point 38. The Court of Appeal Judgment.

The Court of Appeal say’s it is said, but
doesn’t say or explain we said it and further we were referring to clause 5(22)
of our lease contracts, that the case of Barrett v Lounova was cited and this
was suggested as a law, (approved as a ground of appeal at the permission to
appeal hearing) to suggest we could get an implied covenant to 5(22).

However in using this case as a precedent it
does not indicate by any stretch of the imagination that another case and
their special facts would be exactly the same. This law is used as a
PRINCIPLE, the same outcome, ie to get an implied obligation to clause 5(22) as
without one (apart from the expressed obligation to stay insured) the lease is
unworkable.

This similarity to our case in the case of
Barrett v Lounova is striking.

Barrett v Lounova is the case where a tenant had
some repairing obligations, to repair inside of their premises, known as the
interior. The landlord in the lease had ‘no repairing obligations’ so that when
damage which was caused by the outside of the premises, known as the exterior
and then damages the interior, it was said that without repairing obligations
to the exterior, repairing the interior could become a futile exercise. The
courts decided that repair of the exterior had to fall on someone and since in
contract the interior was catered for by the tenants, it went without saying
that the exterior was the landlords implied obligation to repair so as not to cause
damage to the interior from repairs outside of the demised premises and
control.

So the same PRINCIPLE applies in that if the
landlord has no repairing obligations as in our case, they at the very least
must have an implied obligation to keep the instrument of insurance in place to
fix damage caused by the exterior for which we as leaseholders in contract have
no obligation to fix.

This is similar to an implied repairing covenant
as in Barrett v Lounova because in it’s absence of an implied obligation to
5(22) a disrepair condition of the premises makes the commercial premise
unworkable in contract without insurance being in place for disrepair and all
risks associated in disrepair.

The Court of Appeal then somewhat ironically
say’s;

“There
is no suggestion that the implied obligation to repair was absolute in nature
and the court was not faced with a lease that imposed on the landlord
the insurance obligations contained in clause 7(2). In this case it
cannot be said that the tenant is left without remedy in the case of
disrepair to the structure. That constitutes an insurable risk and the landlord
is REQUIRED under the terms of the leases of 104 & 106 to apply
the insurance monies in making good the damage and disrepair”

So in that sentence we see the irony. 'The
tenant' or in our case leaseholders 'is not left without remedy' cannot be more far from the situation in this case and the obligations to insure in 7(2) are the ONLY expressed landlords obligations in the entire lease. It is a vital sentence.

And it goes back to “the ‘reasonable man would
have if they had seen a gap in the contract before they’d signed it” argument
that being “they both being reasonable men would have agreed without hesitation
to its insertion” (into the contract).

If the remedy expressed in the contract has been
vitiated, voided, broken, by the landlord, then the remedy is broken.

We are left with one thing only in this contract
to address and that is clause 5(22) and it necessitated an implied obligation
to the clause to keep the remedy in place.

But further since it is expressed in the clause 7(2) as a landlords obligation to insure then the court can prefer not to say
if it should be an implied obligation to 5(22) or it is a breach of the ‘expressed obligation’ by the landlord
to keep the premises insured and
that stands on it own in contract law as an outright victory in the case of a breach of contract.

Either way the relevant ‘duty’ exists, to
insure, against damage and disrepair ‘at all times’ and is absolute in nature
by virtue of the instrument of building and liability insurance.

Point 39.Court
of Appeal Judgment.

The Court of Appeal referred to the case
involving insured repairs and that was the case of Adami v Lincoln Grange
Management BUT again this was a case where an implied REPAIRING obligation was pleaded
which I have made clear is not what we have pleaded. The Court of Appeal looks
at the case of Gordon v Selico again and quotes Lord Justice Slade as referring
to Mr Sunnucks saying, “if the defendants are in breach of any of those
expressed provisions relating to repair and maintenance, the proper remedy, (in
his submissions is) by refernce to the agreed system and NOT by reference to
suggested implied covenants to which the parties never agreed”

Lord Justice Slade then said;

“Where a tenancy agreement relating to a flat,
forming part of a larger building in multiple occupation, manifestly does not
embody the complete agreement between the parties, the court may well be
willing to supplement the written document by implying terms placing
obligations on one party or the other. Such a case was Liverpool v Irwin, where
the ‘condition of the tenancy’ where tenants were required to sign related only
to the obligations on the part of the tenants, not of lessors council”.

However Lord Wilberforce then said, “such
obligations should be read into the contract, as the nature of the contract
itself implicitly requires no more, no less: a test in other words of
necessity.

And Lord Cross of Chelsea, which I cited at the
Court of Appeal said:

“That the Court must be able to say that it’s
insertion of the term is necessary to give- as he put it- ‘business efficacy’
to the contract and that, if it’s absence had been pointed out at the time both
parties – assuming them to be reasonable men – would have agreed without
hesitation to it’s insertion”

The Adami v Lincoln Grange Management and Gordon
v Selico case both have special facts as each case is different but the
sentiment of the Lords remain the same.

In Gordon v Selico a third party covered up dry
rot before the leaseholder took the lease on. There could be no implied term
for fraud of the third party covered in contract between the parties.

In Adami v Lincoln Grange Management a tenant
had gone along with an insurance scheme and no implied term could apply to give
him extra monies for subsidence, when the insurance policy covered for it and
he had decided to undertake the work himself.

In each case the suggested implied covenant to
repair does not require one or merit one, as the insurance provides remedy.

In our case however it is that the instrument of
insurance has been broken.

This leaves us un-insured.

It is therefore possible for the Court to imply
a covenant to clause 5(22) to not allow the landlord to destroy the remedy.

This protects our position and completes the
contract for all the same reasons as the Lords applied in the House of Lords.

In Adami v Lincoln Grange Management case Jutice
Vinelott said;

“More generally I can see no grounds for
importing any obligations on the part of the lessor to carry out works of
repair to the block from causes which are not covered by an insurance policy
effected pursuant to the terms of the lease, in particular damage which might
result from deterioration of the structure during the term of the lease.”

“In general, there is no implied covenant by the
lessor of an unfurnished house or flat or of land, that it is or shall be
reasonably fit for habitation, occupation or cultivation or for any purpose for
which it is let. No covenant is implied that the lessor will do any repairs
whatsoever”

BUT… in our case it is an absolute
requirement to keep the demised premises and the development in repair and fit
for human habitation, with fire certificates in place, with building
regulations complied with and at an insurance office of good repute. This forms
an integral part of the lease contract and is most importantly with reference
to the laws just quoted, it is ‘expressed’ in the lease contract making either a
‘duty’ in law or ‘an implied obligation’ NOT
NECESSARY AT ALL!! However where the gap in the contract needs an
implied covenant, as common sense and just to spell it out, is that the landlord cannot
void the insurance, as we cannot in clause 5(22) then it should be necessary to
put in the implied obligation.

5(22) TO PAY COST OF
REBUILDING IF INSURANCE AVOIDED

In the
event of the Demises Premises or the building in which they are situate or any neighboring premises or any of
them or any part thereof being destroyed or damaged by any of the Insured Risks and the insurance money under any
policy of insurance effected thereon by the
Landlord being by reason of any act neglect default or omission of the Tenant
wholly or partially irrecoverable
forthwith in every such case to pay to the Landlord on demand the cost of rebuilding and reinstating the building or
buildings so destroyed or damaged such rebuildingworks to be
carried out by and in accordance with the requirements of the Landlord and theTenant
being allowed towards the expenses of so doing (upon such rebuilding and
reinstatementbeing completed) the amount (if any) actually
received by or on behalf of the Landlord (other than in respect of loss of rent) under any such
insurance as aforesaid in respect of such destruction or damage

Point 42.Court
of Appeal Judgment.

The Court of Appeal takes the same view about
implied 'repairing' covenants although I am at pains to say we did not plead this
nor can I find where they take this from that we did but nevertheless the Court
of Appeal takes the view that the contract would be improved with a repairing
covenant and we agree!

The case of Belize v Belize is then cited as a
modern day case about articles of association being written up so badly as to
allow people with little or no consequence to a company in charge of it by
virtue of others retiring or leaving. In this contract the Court found it was
legally ‘ABSURD’. The architect of the contract had not thought of certain
situations arising that then occurred causing the case Belize v Belize. The
contract required an implied term and thankfully one was implied by the
Court’s. This made the contract workable.

In our case the Court of Appeal says here;

“Although there was no express repairing covenant
imposed on the landlord, the repair of the structure of the building is catered
for through the provision of the clause 7(2). In the face of these provisions
there is no reason based on necessity or business efficacy to alter the balance
of the scheme by imposing an implied covenant to repair on the landlord, let
alone one under which his liability to repair is made absolute”

Yet the Court of Appeal does not deal with the
implied covenant request to clause 5(22) “to keep the development and the demise
insured at all times”.

It is our case and has been agreed by the trial
Judge as primary fact that the insurers said that the landlord committed ‘an
act of omission’, which had the direct effect of us being stopped from claiming
on the P.O.L. Property Owners Liability cover and that the landlord failed to
claim on the ‘cessor of rent’ for times when the premises, as the claimants
have contended throughout, were either partially or wholly unfit as set out in
the schedule of loss, preferring to instead save on claims and extort money in
rent from us when we could not trade due to disrepair.

We continued to pay the rent and stated it was a
good-will gesture until such times as the landlord could get the money back
from the insurers and mainly we paid the rent so as not to break the landlords
and tenants act and find ourselves in serious trouble but we believed that the
rent we paid amounting to £39,000 not owed was being held in trust until the
ongoing insurance claim was resolved and we were reimbursed.

At the time we did not think we were paying rent
not to be reimbursed by the insurance cover and this was a hugely stressful
time financially.

The landlord knew they had committed an ‘act of
omission’ so that the insurance money would never be paid, until they either
resolved their differences with the insurance company or sued them to pay us as
was their proprietary duty contractually to apply monies as effectively
although we had joint cover, we should in the policy be seen as insuring
separately as part of the same policy cover. Hence the reason they kept making
rent demands but all the time leaving us in the position of ‘indifference’ and
never telling us about the dispute with the insurers for years, just letting us
wait and further making out they were actually chasing the claim.

Then when they absolutely knew they could not
reimburse us they go and break in with them owing us £39,000 in rent for a 4
days late rent payment, again not our fault because they lost the cheques due
to reception having lots of cheques going missing at the time we were told.

They ignored letters warning them not to take
action to forfeit after sending threats in rent demands from new management and
in witness testimony the new management said they cannot recall getting the faxed
and posted legal letters.

Further when we proved just a day later
we had paid the rent on time they without any just cause broke in
again!! This was an act of violence and Ms Flores flead immediately to the high
court within hours and obtained two injunctions for the protection of her
property. The injunctions prevented the landlord from breaking in or they would
be imprisoned. Ms Flores showed rent payment to get these injunctions. It said
that the terms of the leases and quiet enjoyment was granted until trial. Yet
this landlord did not observe the terms and still left the premises legally
unusable for the two years that lead to trial. They at no point addressed the
disrepair as they were contractually bound to do so in the leases and in the
terms of the injunctions, to give quiet enjoyment and comply with terms of the
leases. Were they stupid or just cocksure in their connections?

Point 43. Court of Appeal Judgment.

We very much agree that the existence of what
the parties intended should be a;

“Comprehensive scheme for the repairs of both
the demise and the retained parts of the building is sufficient to exclude from
their legal relationship, any liability, at common law in tort which the
landlord might otherwise be subject to in relation to the retained premises”

Point 44. Court of Appeal Judgment.

In the circumstances it is unnecessary to
consider the landlords alternative argument of Caveat Lesse (‘buyer beware’ or
a lessor can ‘let a tumbled down house’) law in terms of the leaks into the
pavement, as the Court of Appeal said and we agree. But more principally as
‘our argument’ to that Caveat Lessee argument it can have no application in the
case anyway, where defects were in the retained parts and covered by the
insured risks.

The Court of Appeal said since there was no
‘duty’ in common law, the original (that the judge could hardly avoid) finding
of negligence at the trail for 3 weeks excrement down the walls overflowing
into the premises, cannot be now held.

This astonishingly small award of just £100 for
the original finding of negligence is therefore quashed and the landlord
succeeds on taking the £100 and finding of negligence back.

The Court of Appeal added that the trial judge
had found that no bookings had taken place in the same 3 weeks.

We contend that that is an imbalanced view, as
was written in our skeleton argument and that the original assessment of £100
for the three weeks of negligence finding of damage was extraordinary on the
Judges own findings of fact not least that at one point he said the “smell was
really bad in 106-108” and the recurrence of repeated ingresses of water, he
said, must have been “quite enough to daunt the bravest of spirits.”

In his own judgment on quantum/money, the judge
approached the assessment as a simple matter of looking at the lost income for
bookings during the exact three-week period when he found that the premises
could not be used for display or hire. Such approach takes no sensible account
of the impact on the shops ability to attract customers, to display their art
or hire the exhibition area, or of the fact that the premises recurrently had a
foul or damp smell and/or were damp as a result of ingresses of water, foul
water or sewage.

Further, on the Judges own findings, the tenants
had had to make repeated claims on the insurance policy. In relation to each
claim there had been a, £100 excess. That excess was a loss, which they
suffered by reason of the landlords default in his own premises and it is not
lawful to make us pay £100 which we did, every time the landlord damaged us.

The excess we should never have been forced to
pay. This was put to the Court of Appeal but unlike the landlord who got their
100 quid back, our multiple times £100 that we paid in the excesses was simply
ignored by Court of Appeal, like clause 5(22) as if it played no part in the
hearing. On balance this breaches Section 6 of the Human Rights Act, the right
to a fair trial. But more importantly this hi-lights as a minor point the way
throughout the claimants are being ignored in all the issues. It can be said
this minor point proves the bigger picture.

Point 45. Court of Appeal Judgment.

At the point of trespass the landlord owed
£39,000 in rent but any rent owed by us was shown to the first Judge, Justice
Wilkie and the second Judge Lord Justice Clarke, as proved was paid.

I offered the same receipt of payment to the
court of appeal, who said they did not need to see the receipt. So to say
absent liability to repair, the landlord broke in peacefully is incorrect in
evidence. No rent as proved was owning at re-entry. But as contended if it
follows that clause 5(22) was to be implied for the landlord not to void the
insurance then not only was rent not owed but £39,000 in rent was paid and
unduly enriched the landlord.

Point 46. Court of Appeal Judgment.

The Court of Appeal said that a case for partial
unfitness of the premises was never pleaded, which is not true and it is there
for all to see in the schedule of loss. The Court of Appeal say’s both experts,
meaning surveyors on each side agreed and that is just not true and since they
did not even see the reports this is an oddity.

Evidence. Schedule of loss plus the joint surveyors
report.

Even the expert forensic accountant, assessed on
the partial unfitness element. So this is said now in isolation and is very out
of the ordinary by the Court of Appeal and is utterly incorrect. But since we
are just dealing here with £39,000 and trespass and interest and further losses
to date, in the grounds of appeal which were given permission or at the oral
hearing – a lie is just not adequate and can be proved as a lie and this issue
of great importance needs to be addressed. Just to add it is strange that this
now is the only reference in terms of wording of the insurance policy ever
mentioned in judgment yet I handed over 3 copies to each Judge of the policy
and it was hi-lighted in yellow for ease of reference to point to all the risks
and relevant covers. It has also been put in the relevant papers for the
Supreme Court.

Point 47. Court of Appeal Judgment.

Since the original trial Judge makes no
reference to why he awarded indemnity costs and in our skeleton argument we say
“at least if he said these costs were made from the point of an offer to settle
then indemnity costs would make more sense”, it is quite extraordinary here in
Judgement at the Court of Appeal, that they now say based on no evidence
whatsoever that indemnity costs were based in relation to the £25,000 offer to
settle. Incidently that offer was made the day before the 10 days trial hearing
two years into the case (so what about the indemnity costs for even the court
cases we won at the beginning) and was seen as a cheap trick to save the
insurers the cost of the trial. It reflects in no way any of our losses so
cannot be used under CPR rules on indemnity costs 44.3-

“indemnity costs are rare and not to be used as
a tools with regards to mediation”.

This landlord has never once offered to sit down
and mediate. The day before the trial for us to go to that mediation and be really
prepared when we were still working on the actual trial preparation, meant we
had to urgently pay £8,000 to get a QC to be there as we actually took them
seriously and wanted to get it right in law. We represented ourselves at the
trial and all the hearings apart from the second oral hearing as ordered.

And for a little laugh for you tonight here is a picture of my 8th Great Grandfather, he's the one on the left, Chief Justice of Chester, William Noel of the Common Pleas Royal Courts of Justice.

I was watching a program last night about how the Jews tried to fit in in Paris and it was so sad that they still couldn't be accepted. It resonated with me having been in care and getting two central London art galleries and living a great life but having had all that taken off me I just wonder about stereo-tying people and still treating them badly! When will we all learn? It's just not right or fair!

About Me

I would like those who know about abuse to break ranks, whether you are in a society or club or are the head of state I believe you care. So show it. Take direct action on the internet, start a petition under an alias, explode in your own PR very significant abuses in all of our human rights, if you are that clever then educate and give us all a chance to participate but do not do nothing... for when they screw your grand child you will be blamed as an apathetic generation who did nothing even though you knew.. BREAK RANKS THEY DO NOT CARE - ABOUT You and there is always something you CAN do... BREAK RANKS... BREAK RANKS and You yes You too all of you, just do it and be proud to... you owe it to yourself finally